INTRODUCTION AND BRIEF DESCRIPTION
Employers are not responsible for defamatory content in books or other materials sold by their employees, unless they authorized the sale knowing that defamatory content was present.
SECTION WORDING
304(2) Where a servant, in the course of his employment, sells a book, magazine, pamphlet or other thing, other than a newspaper, the employer shall be deemed not to publish any defamatory matter contained therein unless it is proved that the employer authorized the sale knowing that (a) defamatory matter was contained therein; or (b) defamatory matter was habitually contained therein, in the case of a periodical.
EXPLANATION
Section 304(2) of the Criminal Code of Canada is a provision that offers some protection to employers against defamation claims arising from the sale of books, magazines, pamphlets, or other non-newspaper items by their servants in the course of their employment. Essentially, the section provides that the employer will not be considered to have published any defamatory matter contained in those items unless it can be proven that the employer authorized the sale with knowledge of the defamatory content. The provision is based on the principle that employers should not be held strictly liable for the actions of their employees, especially when those actions are not within the employer's control or knowledge. In this case, an employer may not always be aware of the content of every item sold by their employees, particularly in industries where a large volume of different materials is sold, or where employees have some degree of discretion over what they choose to offer to customers. However, the provision is not a blanket immunity for employers; they can still be held responsible if they deliberately or recklessly sell defamatory material, or if they habitually do so in the case of periodicals. This means that an employer who has knowledge of defamatory content in a particular item or who regularly sells items known to contain defamation cannot use the defense provided in Section 304(2). Overall, Section 304(2) strikes a balance between protecting employers from liability for the actions of their employees in circumstances where they have no control, while also ensuring that employers who knowingly or repeatedly engage in defamatory conduct can still be held accountable.
COMMENTARY
Section 304(2) of the Criminal Code of Canada provides that where a servant sells a book, magazine, pamphlet, or other thing (excluding newspapers) containing defamatory matter in the course of his employment, the employer shall not be deemed to have published such defamatory matter. This exemption, according to the section, applies unless it is proved that the employer authorized the sale, knowing that the publication contained defamatory matter or that it habitually contained such matter for periodicals. The rationale behind this section is to protect employers from being held liable for defamatory content contained in materials sold by their employees in the course of their employment. The section is premised on the view that an employer cannot be held responsible for the actions of their employees when they are acting outside the scope of their employment. Therefore, to impose liability on the employer in such circumstances would be unjust. However, the section also recognizes that there may be situations where an employer can be held liable where they authorized the sale of materials containing defamatory content or where such content is habitual in a periodical. In such situations, the employer is deemed to have published the defamatory matter and can be held liable for any harm caused. The section raises important questions about the liability of employers in the age of digital publishing, where employees can publish defamatory content online in the course of their employment. In such situations, the question arises whether an employer can be held liable for the actions of their employees in publishing defamatory content online, or if the same exemption applies as for printed materials. There is no definitive answer to this question, as it will depend on the specific circumstances of each case. However, it is clear that the law must adapt to the realities of digital publishing to adequately address the issue of liability in such situations. In conclusion, while section 304(2) of the Criminal Code of Canada provides an exemption for employers from liability for defamatory content contained in materials sold by their employees, it also recognizes that there may be situations where an employer can be held responsible for such content. The section highlights the need for the law to adapt to the changing nature of publishing in the digital age to adequately address issues of liability in such situations.
STRATEGY
Section 304(2) of the Criminal Code of Canada is an important provision for employers who may be implicated in defamation claims arising from the actions of their employees. The provision establishes a statutory defence for employers who can demonstrate that they did not authorize the sale of defamatory material contained in a book, magazine, pamphlet, or other thing sold by their employees. In this article, we will explore some strategic considerations and possible strategies that could be employed when dealing with this section of the Criminal Code. Strategic Considerations: 1. Establishing Control: Employers should take steps to establish control over their employees' activities during the course of their employment. This can include measures such as clear policies and procedures regarding the sale of materials, clear communication with employees about the expectations of the employer, and training on the importance of avoiding defamatory material. 2. Due Diligence: Employers should conduct due diligence when engaging in the sale of materials to ensure that they are not defamatory in nature. This can include reviewing the content of the materials, researching the author or publisher, and obtaining legal advice when needed. 3. Effective Monitoring: Employers should implement effective monitoring mechanisms to ensure that any defamatory materials are quickly identified and removed from sale. This can include spot checks of inventory, regular reviews of content, and mechanisms for customers to report any offending materials. 4. Proactive Responses: Employers should take a proactive approach to responding to any claims or complaints regarding defamatory materials. This can include immediately removing the materials from sale, conducting an investigation, apologize to those who may have been affected, and implementing corrective actions to prevent future incidents. 5. Collaboration with Legal Expertise: Employers should seek legal advice from experienced professionals who can help navigate the complexities of defamation law and provide guidance on any claims that are made. Strategies: 1. Establish Employee Guidelines: Employers can establish clear guidelines for employees on the types of materials that they are authorized to sell and what types of materials are prohibited. 2. Conduct Employee Training: Employers can conduct training sessions with their employees to increase awareness of defamation laws and how to prevent the publication of defamatory material. 3. Use Third-Party Services: Employers can contract with third-party companies to provide assistance in monitoring inventory, reviewing content, and identifying defamatory materials. 4. Obtain Legal Advice: Employers can consult with legal professionals who have experience in defamation law to ensure that they have proper legal advice and are informed of their rights and obligations under the law. 5. Implement Effective Communication: Employers can provide effective communication with their employees, customers, and other stakeholders, to ensure that everyone is aware of the measures taken and values implemented by the organization. In conclusion, Section 304(2) of the Criminal Code of Canada provides a critical defence mechanism for employers who may be implicated in defamation claims arising from the actions of their employees. There are many strategic considerations and strategies that employers can employ to protect themselves and their businesses. By establishing control, conducting due diligence, implementing effective monitoring, taking proactive responses to any claims or complaints, seeking collaboration with legal expertise, and taking effective communication measures, employers can mitigate the risks of defamation claims and protect their valuable reputation.